Author Topic: Small Claims, Arb Denied. Seeking strategy advice.  (Read 400 times)

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backpack

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Small Claims, Arb Denied. Seeking strategy advice.
« on: July 17, 2017 01:08:28 AM »
OC: Barclays
$: ~ 3k
Small Claims Limit: $3.5k

The Judge denied my MTC arb. He bought OC's argument that the small claims language offers a "cost-saving" option for OCs (cardholder agreement attached).

My state does not explicitly allow for Motions for Reconsideration, although Pacer says they happen all the time. There are just no civil procedure rules for that specific Motion.  In fact, they were removed a couple years ago.  All the rules I read focus on Motions for Rehearing.  I would not like to get to that place.

My state allows for an Answer at the same time a MTC is filed; so, with my MTC I filed a general denial. 

Since MTRs are wobblers here, I am wondering whether to appeal the MTC arb to a higher court or file a small claims supplemental answer + counterclaim.  The counterclaim would take the total amount in controversy from ~3k to ~6.5k, and move it to circuit court plus improve chances for a successful MTC arb.

Counterclaims would be FCRA and FDCPA.  I pulled my credit reports and Experian and E-fax report one amount while TransUnion reports a higher amount (by about $600 compared to the other reports).  The TU higher amount is what OC is claiming in court.  There are no OC pulls from Equifax or Experian, but there are from TransUnion.  I have already disputed these discrepancies, and OC confirmed them for each CRA.   ;)

Any insight is greatly appreciated.

BellEbutton

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #1 on: July 17, 2017 01:22:37 AM »
The FDCPA does not apply to OCs.

backpack

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #2 on: July 17, 2017 04:30:00 AM »
Belle:  Erm, I meant the attorney hired by the OC. 

In my case, I think the OC attorney falls under the FDCPA because his practice involves a large/majority chunk o' debt collections.

I thought even OC collection attorneys , under certain conditions, did have to follow the FDCPA? 😕
« Last Edit: July 17, 2017 04:42:26 AM by backpack »

BellEbutton

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #3 on: July 17, 2017 05:51:59 AM »
Belle:  Erm, I meant the attorney hired by the OC. 

In my case, I think the OC attorney falls under the FDCPA because his practice involves a large/majority chunk o' debt collections.

I thought even OC collection attorneys , under certain conditions, did have to follow the FDCPA? 😕

Yes, debt collection attorneys are bound by the FDCPA.  How did the attorney violate? 

In any case, I don't think you could file a counterclaim against the attorney because he's not a party to the action.

« Last Edit: July 17, 2017 06:02:16 AM by BellEbutton »

Bruno the JDB Killer

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #4 on: July 17, 2017 12:40:28 PM »
Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration.

Looks like the judge had no authority to make that ruling.


Appeal Your Small Claims Judgment

When you appeal a small claims judgment, you ask the superior court to change the small claims court judge's decision. You will have another court hearing and must present your case again.

A small claims appeal is a "trial de novo" or "new trial." This means that the case is decided by a new judge from the beginning so you have to present your case all over again. Because this case is in the civil division of the superior court (and NOT in small claims court), you (and the other side) are allowed to bring a lawyer to represent you in the new trial.


Motion for reconsideration

"This is when a party that is affected by a trial court's order asks the same court to reconsider the order, based on new facts, circumstances, or law. You must file a motion for reconsideration within 10 days of being served with the written notice of entry of the order you want the court to reconsider. The motion must also include an affidavit with information about the original order and the new facts. circumstances, or law. The requirements are very specific."


Read this section:

http://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1008.html
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

backpack

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #5 on: July 18, 2017 02:40:03 PM »
Thanks for your reply, Bruno. This matter is in MS. They took out the statutory language re. Motions to Reconsider.  It just speaks to Motions for Rehearing.

Bruno the JDB Killer

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #6 on: July 18, 2017 03:31:11 PM »

Arbitration / OC was first to file JAMS Demand. Concerned.
« on: November 09, 2016 12:03:49 AM »
eek!  Elected arb prior to being taken to court.  OC quickly responded with a Demand for Arb. (State: CA, OC: Discover).  Wondering what is their strategy in choosing to be first to initiate?


Did you move?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

backpack

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #7 on: July 18, 2017 05:11:50 PM »
People do relocate, Bruno. We're not all sitting still and gathering moss like you. 😏

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #8 on: July 18, 2017 05:15:24 PM »
File it anyway.  Although the rules don't say it's allowed, they also don't prohibit it.  Worst that can happen is it is denied or tossed as not allowable.  But it's worth a shot, I would think.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

backpack

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #9 on: July 18, 2017 06:16:56 PM »
Thanks fisthardcheese. I will give it a try!

Bruno the JDB Killer

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #10 on: July 18, 2017 08:24:26 PM »
People do relocate, Bruno. We're not all sitting still and gathering moss like you. 😏


Well, you might have told us. Next time do your own research. Bruno is going into his bunker.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #11 on: July 18, 2017 10:27:15 PM »


...My state does not explicitly allow for Motions for Reconsideration, although Pacer says they happen all the time....




PACER is for federal court cases, not state small claims.

Don't take your guidance from their as gospel.

State law and state court opinions are what you should be relying on.

influx773

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #12 on: July 20, 2017 03:56:26 AM »
   Never heard of    "motion to reconsider" . 

  From Wiki>>>>>" In legislative bodies, the motion to rescind is used for much the same purpose as the motion to reconsider; many court decisions treat the two motions as one motion. However, in legislative contexts, it is not the same as a motion to repeal. The difference between rescind and reconsider is that the motion to rescind is ordinarily applied to actions that have been taken and are already in effect. It has been described as being in the nature of a motion to amend by striking out the entire proposal and leaving nothing remaining. It is not in order when the question can be reached by a motion to reconsider. "

  I vote give it a go as fist says....let us know here....probably depends on judge,younger the better chance.

   

Bruno the JDB Killer

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #13 on: July 20, 2017 12:09:31 PM »
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 985 (¶ 3) (Miss.2001) (citations omitted). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001) (citations omitted).
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Small Claims, Arb Denied. Seeking strategy advice.
« Reply #14 on: July 20, 2017 05:44:11 PM »
Is the denial of a MTC arbitration considered to be a judgment (Rule 59)?